A reader, Robert, raised the issue of whether Duffy should be allowed to retain his ill-gotten gain, the housing allowances, made good by Nigel Wright's admirable generosity.
However, what about the money that was actually remittted to the feds to clear Duffy's Senate tab? The charge of bribery is for receiving those funds, Wright's money. Ergo it would seem that Wright's money, the 90-grand, could be deemed proceeds of crime.
In some circumstances proceeds of crime are subject to civil forfeiture and, in some cases they're traceable as they pass into the hands of third parties. Robert's queries led me to a European Union study on civil forfeiture that, at page 49, has an examination of civil forfeiture of proceeds of crime in Canada. Here's an excerpt:
The Canadian experience shows that, since 2003, there have been over 170 civil forfeiture cases in Ontario Province alone. In total, Canada’s civil forfeiture laws have led to the recovery, as of 2011, of some C$80 million, of which more than C$30 million has been awarded in grants for victim related projects42. The initiative for civil forfeiture was led by the province Ontario followed by the adoption of similar legislation in other provinces and federal buy-in. However, there was a concerted constitutional challenge to in rem proceedings in Ontario [in 2005] which was dismissed, with the Ontario Superior Court of Justice finding that civil forfeiture does not infringe the Charter of Rights and Freedoms.
As with most legislative schemes, the Canadian legislation, in its various forms, starts with a proceeds provision: with the underlying definition capable of being relatively narrow or broad, depending upon a state’s particular concerns and needs. Under Part II of Ontario’s Civil Remedies Act, 2001, for example, the Attorney General may commence in rem proceedings against the proceeds of unlawful activity. A proceed is any property „acquired directly or indirectly, in whole or in part, as a result of unlawful activity.” The statute makes specific provision to protect legitimate owners. The statute permits an interlocutory preservation order; this allows assets to be frozen and held for litigation. In the forfeiture proceeding itself, where the court finds that the property is a proceed of unlawful activity it shall be forfeited except where it would clearly not be in the interests of justice to do so. The statute has retrospective application. The in rem nature of the proceeding offers a viable device to attack difficult problems, particularly for issues such as corruption in the developing world. If looted money from a developing state is in Ontario, as long as the corruption (or fraud/theft) would have been an offence in Ontario, the courts can take jurisdiction over the property (notwithstanding that the unlawful activity occurred in another state).
As noted, most laws of this sort "make provision to protect legitimate owners." The litmus test for that used to be whether the property was received "in good faith, for value, without notice." Someone who got the property in good faith, knew nothing about the criminal taint and received it in exchange for something of value was protected.
But - can the federal government claim to have received the bribery proceeds in good faith or for value or without notice? This scheme was hatched and implemented in the office of the prime minister of Canada. This is the government of Canada doing the dirty work. If this was a criminal plot hatched on Stephen J. Harper's very own stoop how can that not defeat the requirements that the Wright monies be received in good faith and without notice? Is this not a case where bad faith and notice should be deemed, attributed to the federal government in receiving Wright's bribe money? Those are the proceeds of crime.
Harper has gone out of his way to repeatedly cast the affair as the rogue acts of Nigel Wright acting in his personal capacity. Wright has, however, gone on record claiming that he was acting within the scope of his position as Chief of Staff. That might mean he was acting in his capacity as the top aide to Stephen Harper in his capacity as the prime minister of Canada.
So, if Duffy is convicted, perhaps Premier Wynn should instruct her counsel to begin proceedings for an order directing that the Wright proceeds be forfeited to the Crown in right of the Province to be distributed as candy for orphans. That sounds about right, yes, no?